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2022 Supreme(Kar) 1277
IN THE HIGH COURT OF KARNATAKA
R.Nataraj, J.
Bhanuprakash - Appellant
Versus
R. Jagadeesh - Respondent
Regular Second Appeal No. 884 of 2019 (DEC/INJ)
Decided On : 04-04-2022
Y.K.Narayana Sharma, Advocate
The judgment emphasizes the importance of accurate property boundaries and the need for clear evidence to establish easementary rights.
Headnote:
Easementary Right - Property Dispute - Sale Deed dtd. 13/8/1973 - [Indian Easements Act, 1882, Section 4, Section 15, Section 17, Section 28] - The plaintiff claimed easementary right over an alley for air and light, but the Trial Court found that the plaintiff had encroached into the alley abutting the defendant's house. The Court also noted discrepancies in the property boundaries as per different deeds. The First Appellate Court upheld the decision, and the second appeal was dismissed.
Fact of the Case:
The plaintiff claimed easementary right over an alley for air and light, alleging that the defendant had encroached the alley and 2 feet wide space on the eastern side of the property. The defendant contested, claiming sufficient air and light from windows on the northern side.
Finding of the Court:
The Trial Court found that the plaintiff had encroached into the alley abutting the defendant's house and there was no vacant space on the eastern side. The First Appellate Court upheld this decision, and the second appeal was dismissed.
Issues: Dispute over easementary right, encroachment, and property boundaries.
Ratio Decidendi: The Court relied on the discrepancies in property boundaries as per different deeds, the evidence of construction, and the absence of vacant space on the eastern side.
Final Decision: The second appeal was dismissed as no substantial question of law arose for consideration.
JUDGMENT
1. This appeal is filed by the unsuccessful plaintiff challenging the concurrent finding of fact recorded by both the Courts that the plaintiff is not entitled to relief of declaration of his easementary right and for perpetual injunction and mandatory injunction to remove the construction put up by the defendant.
2. The parties shall henceforth be referred as they were arrayed before the Trial Court.
3. It is the case of the plaintiff that he purchased the suit schedule property in terms of a Sale Deed dtd. 13/8/1973 and that the eastern boundary of the said property was an alley (galli) and thereafter, the house of the defendant was situated. The plaintiff alleged that he was enjoying free passage of air and light from the windows that were in existence in the eastern wall of building in the suit schedule property. He claimed that there was a 2 feet wide space on the east of the eastern side wall of the building in the suit schedule property which was owned by him. He, claimed that he had an easementary right over the said alley for enjoying free passage of air and light continuously. He alleged that the defendant demolished the building that existed in his property and later on, undertook massive construction over his property by encroaching the alley area and the 2 feet wide space situated on the east of the eastern side wall of the suit schedule property. Therefore, the plaintiff alleged that the defendant had encroached 3 feet alley on the eastern side and also 2 feet wide space on the east of the eastern side wall of the suit schedule property. The plaintiff, therefore, sought for a declaration of his easementary right and for consequential relief of permanent injunction and also for mandatory injunction to demolish the construction put up by the defendant.
4. The defendant contested the suit and claimed that there were two windows in the first floor and three windows in the second floor as contended by the plaintiff. He contended that the plaintiff had no authority to open those windows in the eastern side wall of the suit schedule property. He also alleged that the plaintiff had also opened windows in the first and second floor on the northern side wall of the suit schedule property facing the main door and therefore, he had enough passage of air and light, which was sufficient for his comfortable living in the suit schedule property.
5. Defendant also contended that his property was old and dilapidated which comprised of three shops and a residential house. Since the tenants who were in occupation of the said property did not vacate, he filed HRC Nos.27, 28 and 29 of 2008 on the file of the II Additional I Civil Judge (Jr.Dn.), Mysuru. The tenants in the said cases entered into compromise and handed over vacant possession of the said property. Thereafter, the defendant demolished and reconstructed the building in his property, which the plaintiff could not resist and therefore, filed the present suit.
6. Based on these rival contentions, the Trial Court framed the following issues:
"i) Whether the plaintiff proves that he has been drawing air and light uninterruptedly through 3 feet width galli situated to the eastern side of the suit schedule property by way of easementary right?
ii) Whether the plaintiff proves that the defendant has illegally constructed building to an extent of 5 feet width including the galli measuring 3 feet to the eastern side of the suit schedule property?
iii) Whether the plaintiff proves that the defendant is illegally making further attempt to construct the building over the said 5 feet width area to the eastern side of the suit schedule property?
iv) Whether the plaintiff is entitled for the declaration of easementary right as prayed?
v) Whether the plaintiff is entitled for the relief of mandatory injunction and permanent injunction as prayed for?
vi) What order or decree?"
7. The plaintiff was examined as P.W.1 and he marked documents as Exs.P1 to P24 and also examined another w
